Complainant

Respondent

Anonymised Parties

A Worker

A Voluntary Organisation

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00030697-001

02/09/2019

The Complainant is seeking a Redundancy payment from the Respondent under the terms of Section 39 of the Redundancy Payments Act, 1967-2016

The Complainant commenced work with the Respondent organisation in June 2006. She says that the employment effectively ceased in January 2019 following a period of illness absence on the part of the Complainant, which ended on November 1st 2018.

Just prior to this a client that she had been caring for had died. All her work over that time had been fixed in the Drogheda area.

She says that from November 1st 2018 up to January 13th 2019, she was not offered work with the Respondent organisation.

She says that she contacted her co-ordinator on January 13th 2019 inquiring about work availability and when she could expect to return to work. She says the co-ordinator responded offering a meeting to discuss a new contract of employment

She was then offered a contract of 9 hours per week.

When she subsequently met with her co-ordinator, this was amended to 24 hours per week. She says that she received the document with the 24-hour contract on the 14th February 2019. She says that the coordinator advised her that this was anew contract and she says that she wondered why this was necessary. She says that she had worked 46 hours per week over the previous 7 years. She says that she was then advised that her hours would be used in the care of clients spread out over Meath, Louth, Monaghan and Cavan areas.

She says that was very unhappy with this proposal because she feels it was not workable on a number of fronts.

She says that at the meeting with the co-ordinator on January 30th 2019 an agreed document was prepared and signed by both parties which confirmed the following:

I. The complainant had been working 46.5 hours weekly for the Respondent.

2.A contract of 9.5 hours per week offered and rejected by the Complainant.

3. The Complainant asked for a redundancy lump sum to be paid to her.

She says that the Respondent responded, rejecting the claim for redundancy on the bases of:

1.      Suitable and alternative employment was available.

2.      24 hours per week was now offered.

3.      In geographic location accessible to the Complainant.

She says that under the terms of the Redundancy Act the Respondent is required in the event of reorganisation to offer alternative and suitable employment. She says that the Respondent did not fulfil this obligation.

She says that she had established a working week of 46.5 hours and that reducing this to 9.5 hours weekly made working non-viable for her.

She also says that she had an established working area in Drogheda and that working over the the substantial geographic area proposed would have imposed considerable stress on her.

She says that the work was made non-viable and that claiming redundancy in these circumstances should have been accepted by the Respondent.

She says that the Respondent had implemented a programme of redundancies in October 2018, but this was not extended to the Complainant.

She is asking that her request for statutory redundancy be awarded to her and that the Tribunal should so decide.

The Respondent says that Clause 5 of the Complainant’s contract provides that “the hours may be irregular and there may be requirements to change the pattern of work and /or number of hors as dictated by future client demands. Where work changes are required reasonable notice will be given.

They say that Clause 11 of the contract provides that “the Respondent reserves the right to lay you off from work or reduce tour working hours where, through circumstances beyond its control, it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such lay-off or short-time”.

They say that in August 2011 the Complainant was informed by the Respondent that the services that the Complainant had been providing to a particular service user would cease with effect from August 26th 2011. They advised to Complainant that every effort would be made to match the hours she had worked with that particular service user. They say the Complainant was also informed that in the event of additional hours not being available from the 27th June, 2011 onwards, the clause in the Contract in relation to short time hours would come into effect and thereafter the Complainant would no longer be paid for these hours.

The service user which the Complainant was providing Personal Assistant services to died in July 2018. The Complainant was paid two weeks salary up to August 16th 2018 and they say that she subsequently went on sick leave on the 13th August 2018.

They say they wrote to the Complainant on the 14th March 2019 offering her a 24-hour contract, but that they did not receive a response. They say that they wrote again on the 25th April 2019 setting out their position again.

They say that the Complainant remains on the headcount of the Respondent, as an employee, but has not returned to work.

They say, finally, that in circumstances where the criteria for an entitlement to redundancy are not met and where the Respondent did its best to provide alternative hours to the Complainant, they submit that the Complaint under the Redundancy Payments Act, 1967 should be dismissed.

The Respondent has been clear in his response to the Complainant that once they offered the minimum of 50% of the hours and remuneration of the Complainants effective contract to the Complainant then the Complainant had no valid claim for a redundancy payment in these circumstances.

The Complainant, through her Union representative makes the following points in relation to the Act:

1.      In the event of reorganisation, under the Act, the Respondent is required to offer alternative and suitable employment to the Complainant. The Complainant had already made the case that from the point of view of the geographical spread, that the Complainant was now expected to service, that this was a materially significant change in the Complainant’s contract, relative to what had been established over the previous 7 years of her employment contract. They say that it was far from being “alternative suitable employment”, as required.

2.      Under Section 7 (1) of the Act it provides that an employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short time for the minimum period, shall, subject to this Act be entitled to the payment of monies which shall be known (and in this Act are referred to) as redundancy payment provided—

(a)    He has been employed for the requisite period and

(b)   Was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts,1952-1966 ……….

The Complainant was placed on short time working relative to the established conditions prevailing in her work. In these circumstances she Is likely to have a remedy as defined in Section 12 of the Act, through entitlement to redundancy when laid off or kept on short time for 4 or more consecutive weeks within a period of 13 weeks or a series of 6 or more weeks of which not more than three were consecutive.

In this case the Complainant did not return to work having been offered a working week of 9 hours. Nor did she return when the 9 hours per week was increased to 25 hours. Effectively she would have been on layoff or short time in that period. The Respondent does not seem, in the time between March 2019 and November 2019, despite saying that the Complainant is still employed, to have offered her a return to work on her established conditions of employment. In this period she would have had a right to seek a redundancy payment.

I am not convinced that the offer of a 9-hour week was a “clerical error” or that the offer hastily changed to 25 hours was not for the purpose of preventing a claim for redundancy payment.

In the circumstances and in accordance with the terms of the Act referred to above I find that the Complainant has established a case to enable her to claim a redundancy payment on the basis of the length of time she would have been on short time and the Respondent gave no commitment to her as to when such short-tome would conclude.

In finding for the Complainant and say that she must now be paid redundancy, based on her service and her rate of pay based on a 46.5 hour week.